State says it will use a new, single drug for upcoming execution

State officials unexpectedly said in court today that they’ve found a way around a shortage of a drug used for lethal injections for death-row inmates, saying they’re prepared to use a single drug for a scheduled Feb. 13 execution.

A nationwide shortage of one of the three drugs used for executions has led to a delay in some death sentences in various states. However, Texas first used the single-drug method in July; Georgia and Kentucky in the past week cleared the way to use similar alternatives to the trio of drugs.

Today’s revelation came in U.S. District Court in Baton Rouge in a case involving death-row inmate Christopher Sepulvado. He wants his Feb. 13 execution date thrown out so he can challenge the state’s lethal-injection process. As in cases in other states, his attorney says the three-drug mixture could be cruel and unusual punishment, violating his Constitutional rights.

During a status conference with Judge James J. Brady Tuesday, Sepulvado’s lawyer argued that he should be able to join an ongoing lawsuit accusing the state of not providing basic information about the three-drug injection process.

A Louisiana Department of Public Safety and Corrections representative told the court that the state intends to use only one drug — pentobarbital — for future executions, Michael Rubenstein, a lawyer at the status conference, told The Lens.

Previously, the state used sodium thiopental, pancuronium bromide and potassium chloride. But a nationwide shortage of sodium thiopental made lawyers question how the state planned on executing inmates.

Still, the change announced today doesn’t affect the questions at hand, Rubenstein said in an email after the hearing.

“Even though the Department of Corrections has today disclosed that they intend to use pentobarbital as the single drug [for] future executions, the State continues to refuse to provide basic information about how it intends to execute Louisiana citizens, such as whether any medical authorities were consulted regarding the incorporation of a new drug; the source of the new drug; or the training of personnel who will implement the new procedure for the first time,” he wrote.

The Corrections representative who appeared in court did not have a state-issued written procedure of how to administer the drug for the first time, Rubenstein said.

Corrections officials declined to comment on the matter, saying a news release would be issued Wednesday.

“There is only one pharmaceutical company that makes pentobarbital that has been approved for use in this country, and that company has made the drug unavailable for departments of corrections to use in executions,” Rubenstein said.

“For this reason, it is imperative that the Louisiana DOC be forthright … about where it got the pentobarbital it plans to use and whether it is an FDA-approved product.”

Sepulvado, 69, of DeSoto Parish, was convicted in 1993 for the 1992 murder of his 6-year-old stepson, Wesley Allen Mercer. Various court documents outline the boy’s death in gruesome detail, describing how he was beaten with a screwdriver and his body immersed into a tub of scalding water, causing significant burns and, ultimately, death.

In the 20 years since Sepulvado has been convicted, the state’s lethal injection procedures have changed.

Gary P. Clements, Sepulvado’s attorney, said his client has a right to know about the changes.

Clements is scheduled to appear on Friday for a hearing for another lawsuit – this one in civil court against the Department of Corrections – concerning Sepulvado’s rights when it comes to public records about the lethal injection procedure.

“It’s a Louisiana constitutional right for anyone to have a right to go and find out these things,” Clements said. “There is no legal basis for them to deny us and not turn them over.”

Clements had been seeking access to procedural documents since Dec. 18, six days after a warrant for Sepulvado’s execution was signed, including information about the company and origin of the drugs used for execution.

The lawsuit says that the public-records request was not answered until Jan. 8, and a “large majority” of the records had been denied.

At the end of January, after several appeals for his client had been denied, Clements asked to join Sepulvado’s federal complaint with that of death row inmate Jessie Hoffman, of St. Tammany Parish. That lawsuit also seeks to understand how the lethal-injection procedure will be carried out, and with what drugs.

Today’s hearing in federal court was regarding the possible merger of the two complaints.

By the end of the meeting in court, Brady had discussed the possibility of a full hearing on lethal injection in Louisiana, Clements told the Lens. A date for the potential hearing has not been set.

Rubenstein, who represents Hoffman, said he expects the judge to make a decision about how to proceed after the Friday hearing in Civil Court.

If the judge agrees to allow Sepulvado to file suit with Hoffman during the hearing, then Sepulvado’s execution date could get postponed.

Della Hasselle, a freelance journalist and producer, reports environmental and criminal justice stories for The Lens. A graduate of Benjamin Franklin High School and the New Orleans Center for Creative Arts, Hasselle lived in New York for 10 years. While up north, she produced and anchored news segments, wrote feature stories and reported breaking news for DNAinfo.com, a hyperlocal news site. Before that, she worked at the New York Daily News. She obtained her master’s degree from the Columbia University Graduate School of Journalism. She can be reached at (917) 304-6121.